Assessment under the MHA whilst under arrest

Law and practice Mental Health Act
1

Can someone be assessed under the Mental Health Act whilst under arrest or do they need to be de-arrested first and/or put on a S136? Also, can they be arrested and brought to A&E for assessment whilst still under arrest or should they first be de-arrested and put on S136?

1 Like
2

S136 is only for ‘arrest’ when a person is found in a ‘*place to which the public has access’. [*Caution: these are not words in the law; I am only summarising the gist of the issue]. S136 is issue specific i.e. The person must reasonably appear to the police to be mentally disordered and in a public place [Caution again: in summarising and ‘lay-personising’ this, accuracy will be lost. I do not know if you are a lay person.]

A person who is arrested from a private residence for some reason, cannot according to S136 be whimsically put under S136. However, strange things do happen that are never seen in journals or in the press. I’ve been told of situations where police may arrest someone in a private residence, march them out onto the street (which is a public place) and then slap a 136 on them. What’s the truth? The truth is what the police will say it is, which could expectedly be, ‘We found them outside their house, sorry. It is what it is.’. [Caution: I have not heard such words uttered. It is only what I expect based on direct experience with the police and real ordinary people.]

There is more here: s136 – Investigative Psychiatry. Unfortunately mental health law is a complex area requiring in-depth study to understand and obey it. Why?:

  1. It’s a whole load of legalese.
  2. The words in the law don’t mean ‘exactly what they appear to be’ on the page.
  3. There is overlap between and among truck-loads of laws (meaning statute law).
  4. ‘People’ do what they think is right because everybody else is doing the same thing.
  5. The logic of the law is not what ‘people’ think it is.
  6. As absurd as the law may appear to be, one cannot just say ‘That’s nonsense, I’ll do what makes sense to me’. Why? Because Parliament is supreme and can write as much absurd law as it likes, and everybody must obey [Principle of Parliamentary Sovereignty/Supremacy]
  7. Adding some degree of confusion is that ‘Codes of Practice’ whilst created by requirements of law - are NOT ‘the law’. But ‘everybody’ seems to believe they are the law, so I am wrong [it’s the social media ‘numbers game’ where the majority are always right - or so they believe].